[1] The point of time of application of Article 9 (1) 11 of the former Trademark Act

[2] The case holding that the trademark is not a trademark that is likely to deceive consumers under Article 9 (1) 11 of the former Trademark Act

[3] The case holding that it is not registered in violation of Article 6-7 of the Paris Convention

[1] In order to refuse the registration of a trademark on the ground that it falls under Article 9(1)11 of the former Trademark Act (amended by Act No. 4210 of Jan. 13, 1990), a registered trademark needs to be widely known among general consumers or traders as the trademark of another person on the basis of the time a decision to grant trademark registration is rendered or a decision to grant trademark registration is rendered.

[2] The case holding that the court below's decision that the cited trademark is not a trademark likely to be recognized as a product or trademark of a specific person if the cited trademark is a product or trademark for the general transaction in Korea due to the circumstance that the cited trademark was applied for registration in 20 countries by the applicant and registered in six countries among them, and in our country, one advertisement in golf magazines and one-time introductions are published in a monthly golf magazine, and the quoted trademark is not known to the extent that it can be recognized as a product or trademark of a specific person, and thus, the registered trademark is not a trademark that is not a trademark that is likely to deceive consumers as defined in Article 9 (1) 11 of the former Trademark Act.

[3] The case holding that the court below's decision that the trademark in this case was not registered in violation of Article 6-7 of the Paris Convention for the Protection of Industrial Property on the ground that there is no evidence that the claimant had the right to the cited trademark in any of the countries of the Paris Union before the filing date of the registered trademark

[1] Article 9 (1) 11 of the former Trademark Act (amended by Act No. 4210 of Jan. 13, 1990) (see Article 7 (1) 11 of the current Trademark Act) / [2] Article 9 (1) 11 of the former Trademark Act (amended by Act No. 4210 of Jan. 13, 1990) (see Article 7 (1) 11 of the current Trademark Act) / [3] Article 6-7 of the Paris Convention for the Protection of Industrial Property

[1] Supreme Court Decision 86Hu156 delivered on March 10, 1987 (Gong1987, 648), Supreme Court Decision 87Hu52 delivered on December 22, 1987 (Gong1988, 347), Supreme Court Decision 89Hu1677 delivered on May 11, 1990 (Gong1990, 1263) / [2] Supreme Court Decision 94Do3287 delivered on November 7, 1995 (Gong195Ha, 3954)

Gaba Baba Bawa (Patent Attorney Gyeong-hoo, Counsel for the defendant-appellant)

New Interest

Korean Intellectual Property Office Decision 92Hun-Ba400 dated April 20, 1995

The original decision shall be reversed. The case shall be remanded to the Appellate Trial Office.

The grounds of appeal are examined.

1. On the first ground for appeal

If a trademark registration is refused on the ground that it falls under Article 9 (1) 11 of the former Trademark Act (amended by Act No. 4210, Jan. 13, 1990; hereinafter the same), it shall be deemed that the registered trademark of another person needs to be widely known among general consumers or traders as the trademark of another person, based on the time a trademark registration is rendered or a trial decision to permit trademark registration is rendered as to an application for trademark registration (see, e.g., Supreme Court Decisions 86Hu156, Mar. 10, 1987; 89Hu1677, May 11, 1990).

However, according to the records, at the time of the registration situation of the trademark of this case in Korea, the cited trademark was applied for registration with the applicant in 20 countries, and registered in six countries among them, and during that period, in our country the golf magazines published one time advertisement and advertisement and the introduction of a new product in one time. However, such circumstance alone is difficult to deem that the quoted trademark is recognizable to the extent that it can be perceived as a specific person’s goods or trademark if the quoted trademark is the goods or trademark in the general transaction in Korea, and there is no other evidence to acknowledge it. In this regard, the court below’s decision that the trademark of this case is not a trademark that is likely to deceive the consumers as stipulated in Article 9(1)11 of the former Trademark Act is just, and it is not erroneous in the misapprehension of the legal principles of the above provision. The ground for appeal pointing this out is not acceptable.

2. As to the third point A

According to the reasoning of the decision of the court below, the court below held that the trademark of this case is not registered in violation of Article 6-7 of the Paris Convention for the Protection of Industrial Property (hereinafter only referred to as the Paris Convention) on the ground that no evidence exists that the applicant had the right to the cited trademark in any of the countries among the countries of the Paris Convention before the filing date of the trademark of this case. In light of the records, the court below's above measures are just, and there is no error in the misapprehension of legal principles as to the interpretation of Article

3. As to the second and third points B

According to the records, the claimant filed an application for trademark registration of this case under the intention of infringing the claimant's right by taking advantage of the status of the claimant who was the claimant's agent, and the case was instituted for an indictment due to this violation of the Unfair Competition Prevention Act, it is clear that the trademark registration of this case does not make any decision on this point even though it alleged anti-social and moral act that violates Article 9 (1) 4 of the Trademark Act and the principle of good faith.

Therefore, the court below should have deliberated whether the original trademark constitutes "a trademark that is likely to disturb the public order or good morals" under Article 9 (1) 4 of the former Trademark Act, and should have judged that if the registered trademark falls under the above provision, it would be null and void. However, the court below did not make any decision without deliberating on the above provision. The court below erred by neglecting the decision on important matters affecting the trial decision. The part pointing this out in the grounds of appeal is with merit.

4. Therefore, the decision of the court below shall be reversed, and the case shall be remanded to the Appeal Trial Office to the Korean Intellectual Property Office for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-chul (Presiding Justice)